Saturday, April 9, 2011

So May visa bulletin has been released and it brought disappointment to Indian and Chinese national under EB-2 Category. There were lot of hype and emotion around immigrant community that we would see a significant movement for EB2-IC in May Visa Bulletin due to availability of 12,000 unused visa numbers from EB-1 category (which is still available by the way). Here we would like to have a very critical analysis of the entire situation, statements made in Visa Bulletin, why we did not see ample movement in May visa bulletin, what we expect in coming bulletin, how this would change the predictions for EB2-IC over the course of year and of course, EB3-EB2 porting.

Why dates did not move to predicted December 2006 cut-off for EB2-IC?

Our predictions were based on availability of 12,000 unused visa numbers from EB1 category and half yearly EB2-ROW , EB4 and EB5 demand. Movement in May visa bulletin clearly suggests that former were not completely used and it is too early to use latter when we are just near early April, far from spillover season which usually commence in last quarter of fiscal year. In addition to this, DOS is worried about unknown demand from EB3 to EB2 upgrades. Before going into further detail, let's analyze Section "VISA AVAILABILITY DURING THE COMING MONTHS" in detail and read through each line carefully.

Analyzing"VISA AVAILABILITY DURING THE COMING MONTHS"

"Employment-based: At this time the amount of demand being received in the Employment First preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category will remain “Current” for all countries. It also appears unlikely that a Second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high."

Above statement definitely bolsters the statement from Mr. Oppenhiem that EB1-demand is low and EB2-IC would at least receive 12000 visa numbers from them.

"Employment Second: Demand by applicants who are “upgrading” their status from Employment Third to Employment Second preference is very high, but the exact amount is not known. Such “upgrades” are in addition to the known demand already reported, and make it very difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. While thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India Employment Second preference per-country annual limits, it is not known how the “upgrades” will ultimately impact the cut-offs for those two countries. (The allocation of “otherwise unused” numbers is discussed below.)"

DOS here confirms that there are still thousands of "otherwise unused" visa number available from EB1-category but is worried about "unknown demand" from EB3 to EB2 porting which restricts them from moving the cut-off dates by bounds and leaps for EB2-IC. If you will read above quote carefully, it also suggests that the EB2-ROW demand is not high enough to consume any spillover and unused visa numbers for now would only be consumed by EB2-IC.

"INA Section 202(a)(5) provides that if total demand in a calendar quarter will be insufficient to use all available numbers in an Employment preference, then the unused numbers may be made available without regard to the annual per-country limits. Based on current levels of demand, there will be otherwise unused numbers in the Employment First and Second preferences."

Assures that there are otherwise unused numbers available from EB1 and EB2-ROW category. So we should expect some spillover from EB2-ROW. How much, is still to be seen. I would still assume at least 8000 -9000.

"Such numbers may be allocated without regard to per-country limits, once a country has reached its preference annual limit. "

Since EB2-C has not reached it's annual limit (see below), DOS could not use available unused visa numbers to move China with EB2-India (unless it is last quarter where they have to move dates to avoid wastage of annual visa numbers) . This is one of the few reasons that entire "12000 unused visa numbers" was not used for May visa bulletin. At most EB2-I could have advanced to 01 August 2006, same PD as EB2-China. Though (INA) Section 202(a)(5) allows EB2-I to use available spillover but PD cut-off date cannot move beyond that of EB2-C PD.

"Since under INA Section 203(e) such numbers must be provided strictly in priority date order regardless of chargeability, greater number use by one country would indicate greater demand by applicants from that country with earlier priority dates."

As known EB2-I would receive most of the otherwise unused visa numbers from EB1 and EB2-ROW compared to EB2-C as demand and PD cut-off date for EB2-I is earlier than EB2-C.

"Based on amount and priority dates of pending demand and year-to-date number use, a different cut-off date could be applied to each oversubscribed country, for the purpose of assuring that the maximum amount of available numbers will be used. Note that a cut-off date imposed to control the use of “otherwise unused” numbers could be earlier than the cut-off date established to control number use under a quarterly or per-country annual limit."

DOS just bolstering or justifying their decision of moving cut-off date for EB2-I to 01 July 2006 using "otherwise unused" numbers whereas EB2-C only moved due to it's allocated 233 visa monthly limit.

"For example, at present the India Employment Second preference cut-off date governs the use of numbers under Section 202(a)(5), India having reached its Employment Second annual limit; the China Employment Second preference cut-off date governs number use under the quarterly limit, since China has not yet reached its Employment Second annual limit."

Of all the statements, India has reached it's annual limit is most difficult to digest. We would discuss this in detail below. This could give some indication of EB3-EB2 porting numbers.

"The rate of number use under Section 202(a)(5) is continually monitored to determine whether subsequent adjustments are needed in visa availability for the oversubscribed countries. This helps assure that all available Employment preference numbers will be used, while insuring that numbers also remain available for applicants from all other countries that have not yet reached their per-country limit."

DOS want to ensure that available spillover from all employment preference (EB1, EB2-ROW, EB4 and EB5) should be used for oversubscribed countries in a controlled manner but at the same time does not want to overuse the spillover for one country (India in this case), and thus ensuring that enough visa is available for applicants from other countries, which is yet to reach their per country limit (China, may be South Korea, other ROW countries).

"As mentioned earlier, the number of applicants who may be “upgrading” their status from Employment Third to Employment Second preference is unknown. As a result, the cut-off date which governs use of Section 202(a)(5) numbers has been advanced more rapidly than normal, in an attempt to ascertain the amount of “upgrade” demand in the pipeline while at the same time administering use of the available numbers. "

DOS just want to test the waters and want to ball-park the numbers for EB3 to EB2 porting before they can entirely use available spillover from other categories. It seems that so far they have just thrown otherwise unused 2800 available visa numbers from EB1 to gauge the demand for porting numbers.EB2-IC still have at least 9000 unused visa numbers from EB1-category that will be used later in year.

"This action risks a surge in demand that could adversely impact the cut-off date later in the fiscal year. However, it also limits the possibility that potential demand would not materialize and the annual limit would not be reached due to lack of cut-off date movement."

It is unclear to me if DOS is suggesting that there is a possibility of visa wastage this year due to lack of cut-off date movement (which will be terrible) or they are suggesting that this action would restrict them from wasting any visas. It is not explicitly stated and completely ambiguous to me.

"Based on current indications of demand, the best case scenarios for cut-off date movement each month during the coming months are as follows:

China: none to three weeks expected through July. No August or September estimate is possible at this time.

India: One or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time."

Since DOS would not know any real EB2-IC demand due to EB3 to EB2 porting until May end or early week of June (demand would only start coming after 1st May 2011) , we expect no or limited movement for EB2-I until July visa bulletin. If demand would rise or surge in month of May-June due to EB3-EB2 porting, we expect movement by few weeks in July visa bulletin. Do not expect spillover to kick in until August-September in this case. In meantime EB2-C will keep on moving by a week every month based on it's annual visa allocation.

Of this entire situation, one good thing is that DOS moved dates only by two months and not by huge amount because we expect EB3 to EB2 porting to be a decent number around 1500 for folks with PD beyond 08 May 2006 and before 2007. This high demand would have overwhelmed DOS and EB2-I could have ended up seeing lesser movement for rest of the fiscal year; greater movement is still a possibility due to ONLY two months advancement. This may be a "Blessing in Disguise" after all for EB2-I.

EB3 to EB2 Porting and Annual Limit for EB2-India reachedDOS mentioned that annual limit for EB2 category for India is reached which is still little shocking. There could be two scenarios to it. Lets discuss them in detail here.

a) DOS moved dates for EB2-IC in FY 2010 to 08 May 2006 without considering or (knowing) the real demand for EB3 to EB2 porting and USCIS/DOS were later burned with number of new applications they received that were far beyond available unused visa numbers from FY 2010. So DOS continued to use visa numbers from EB2-I current fiscal year allocation to satisfy demand from previous year in addition to demand from all new EB3-EB2 porting applications post September 2011. In order to avoid retrogressing cut-off dates for EB2-I and to fulfill backlog demand, entire annual visa allocation limit for EB2-I was utilized. Thus DOS wants to be very careful for this fiscal year and would move cut-off dates in a very controlled manner so not to underestimate demand from EB3 to EB2 porting. This suggests that DOS rather be on underside for annual limit and waste few visas rather than underestimating the porting demand and consuming more than annual limit.

OR

b) EB3 to EB2 porting is really very high which is not transparent in monthly demand data due to continuous turnover. Utilizing complete annual limit for EB2-I suggests that EB3 to EB2 porting for fiscal year so far is around 3000 and this would convert into 6000 porting numbers plus addition of new EB3 to EB2 porting application with PD beyond 08 May 2006 PD for entire year. So yearly upgrade could be somewhere between 6000-7500 depending upon how and when dates will progress in coming months.

Predictions for EB2 in light of new developments

We would still like to say that in worst case scenario we are still marching towards our current worst-case scenario of 01 April 2007, which apparently could become realistic scenario due to conservative DOS approach and potential for some spillover going unused or wasted. It highly depends on how EB3 to EB2 portingdemand would shake up in coming two months.A steep increase in demand would make DOS more conservative and dates reaching 01 January 2007 would be a challenge. I still have a hunch that 01 July 2007 is a possibility as long as DOS can be little aggressive and we will see decent movement in July visa bulletin.Again as mentioned before, dates would never become current for EB2-IC to open the gates to build huge inventory for future I-485s .DOS would always moves dates in controlled manner in forthcoming years.

Concerns - Two Fold

This may a bold statement but it looks like AILA is guiding DOS too much on how to advance Priority Dates than it being vice-versa. All hype of unknown high EB3 to EB2 upgrades has come from AILA. I really doubt EB3 to EB2 porting number is so high and DOS is getting heedlessly so conservative in their approach . The numbers may be high but I am still not convinced. We would know in few months.

The worry that if dates are not progressed enough in July- August visa bulletin, some visa numbers can go waste which otherwise could be used wisely.

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48
comments:

KK
said...

Nice analysis. I too had some of the concerns you note above. A better approach would have been to open the gates earlier rather than later when you actually risk wasting visa numbers due to less time in hand to calibrate response.

How come spill over numbers are being used by India while other oversubscribed countries such as China or others are still using their own annual limits?

The law doesn't clearly specify the SPILLOVER numbers should be allocated by prority date. Spillover numbers allocated by priority date would violate the diversity principle to allow large proportions under EB2 of one country such as India to immigrate while at the same time discriminating other oversubscribed countries such as China.

The SPILLOVER numbers should be shared equally under EB2 category by oversubscribed countries, say 50-50 split between China and India at this point, then within each country,visa number is allocated based on priority date. This would be the most fair and reasonable allocation method to all oversubscribed countries and it is consistent with the diversity principle to avoid large proportion immigrants from one country.

I have many friends from India. We all share the same pain for years of waiting and waiting...My question is to DOS, how do you determine that China EB-2 only moves one week for May? When there was no spillover of 12000 numbers, China EB2 got 1-2 weeks move per month. Now we have 12K additional numbers, India moved almost two months, how did China only advance only one week? Is there any possible discrimination against Chinese EB immigrants?

i just reread my comment above and realized that the sarcasm in my tone did not come out, and that it can be read as being hostile. So i'd like to clarify, i was kidding. I don't think there is any discrimination against Chinese EB immigrants. I don't think America is afraid of the Chinese, and I don't think China has tried to poison American babies. It was all meant in good jest, poking fun at the paranoid comment above (the question of whether Chinese EB immigrant were being discriminated against).

Most toy companies are just manufacturers that produce toys for American companies with American designs. How did China poison babies here in US? If that were the case, US should have banned all toys made in China. China is an East Asia country. If China's military were not in East Asia, where do you want them to present? Do you want them to invade Iraq or Afghanistan to show less aggression? They did not come to drill in the front door or the back yard of America as US did in East and South China seas. China military just stayed in its country in East Asia, is it considered military aggression?

@KK That is still a worry. We have enough pre-adjudicated cases to use entire spillover but if DOS will assume demand greater due to some porting aaumptions in month of September than actually is, we may end up wasting some visas.

Unused visa numbers are used by USCIS in a way that the other retrogressed countries (India, China, philippines, mexico) can catch up with Rest of the world (as long as ROW is current; else spillover will go to ROW as they are NOT normally classified as oversubscribed) and is no more retrogressed for the same preference category. In case of spillover USCIS does not treat retrogressed countries as separate but as one oversubscribed country which will get unused visa numbers on a basis of FIFO (first in first out). An individual in same category with earlier PD will get green card faster in comparison to those with later PD regardless of country. This is simple way of looking at utilization of unused visa spillover for a same category. So once every country has hit it's annual limit, unused visa numbers are strictly used to reduce oldest backlog.

So taking recent example, individuals with PD before 01 Aug 2006 (who happened to be from India) will consume initial unused visas until backlog is cleared and then all the remaining unused visa numbers will be used by individuals with post PD 01 Aug 2006 (now population consists of India and China) until unused visa numbers are completely exhausted. So though it looks that one country would end up using spillover greater than other, but in actuality unused visa numbers were strictly used on basis of FIFO. So diversity no more comes into picture.

How diversity affects dearth of skilled professionals in a country is far beyond my imagination, but again whom am I to say anything about it.

Anonymous said... How come spill over numbers are being used by India while other oversubscribed countries such as China or others are still using their own annual limits?

The law doesn't clearly specify the SPILLOVER numbers should be allocated by prority date. Spillover numbers allocated by priority date would violate the diversity principle to allow large proportions under EB2 of one country such as India to immigrate while at the same time discriminating other oversubscribed countries such as China.

The SPILLOVER numbers should be shared equally under EB2 category by oversubscribed countries, say 50-50 split between China and India at this point, then within each country,visa number is allocated based on priority date. This would be the most fair and reasonable allocation method to all oversubscribed countries and it is consistent with the diversity principle to avoid large proportion immigrants from one country.

They cannot decide that knowingly as there are number of pre-adjudicated cases available in the inventory. But yeah if they thought they will move dates for EB2-IC that would be enough to consume available unused visa numbers and in reality they end up not using all the visa numbers, some numbers could be used to approve EB3-ROW cases which are current but could not approved due to consumption of country's annual limit. Other remaining visas will go wasted.

Other thing USCIS can do is to progress EB3-ROW more than the annual limit in Sep (not sure if allowed to do so) and in case unused visa number are available, approve the cases and if not re-calibrate the movement for EB3-ROW in October to satisfy this demand.Anonymous said... What will happen in a situation like DOS has still 20K Visa's available in August and may decide CIS might use only for example 12 K. Would DOS then spill these visa's to EB3?

There is no discrimination. Spillover is strictly allotted on FIFO principle. See comments above.

Since EB2-C has not reached its annual limit, DOS cannot allot apillover to them. There are other limitations on using unused visa numbers each quarter. Some visa numbers were used for EB2-I ( in any case those will be used by EB2-I based on FIFO principle) just to test the porting demand. At no point EB2-I can have dates past EB2-C using those available numbers. Once they will reach same PD as EB2-C they will have to wait for EB2-C to completely utilize it's annual limit.

Anonymous said... I have many friends from India. We all share the same pain for years of waiting and waiting...My question is to DOS, how do you determine that China EB-2 only moves one week for May? When there was no spillover of 12000 numbers, China EB2 got 1-2 weeks move per month. Now we have 12K additional numbers, India moved almost two months, how did China only advance only one week? Is there any possible discrimination against Chinese EB immigrants?

Correction : Other thing DOS ( not USCIS) can do is to progress EB3-ROW more than the annual limit in Sep (not sure if allowed to do so) and in case unused visa number are available, approve the cases and if not re-calibrate the movement for EB3-ROW in October to satisfy this demand.

@Attie Yes 6000 porting cases includes dependents. If numbers are far more than this, EB2-I should have retrogressed atleast once this year, unless DOS used some of the unused visa numbers every quarter which we are not aware of. But again if they were used, numbers cannot be that large as they are bounded by statutory limitation for each quarter until last quater where they can use them all.

Hi CM, Thank you very much for such an informative blog . I am in Eb2-India and my priority date is NOV 5 2006.In may visa bulletin it is stated that for EB2 -India" One or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time".Does this mean we can see possibly forward movement if they use the spillover visa numbers? If they do so can you tell when will be my priority date current ?If not whats your expectation on my date?

@Agarwal I feel you will be current in August or Sep 2011. Chances before that are very less. We know more when July visa bulletin will come out. We do not expect any movement in June bulletin, maximum by 4 weeks - best case. Reason being EB2-C would not have used it's entire annual limit and secondly DOS would not know nothing about EB3 upgrades.

All your blogs are well analyzed, well researched and well written. Appreciate all your blogs and the contents, which are informative and convincing the readers.

I differ from your view on concerns/ conclusions. From DoS angle, increase in upgrades (EB3 to EB2 portings) include all countries (ROW includes M & P), while many perceive the topic as 'India' specific. I know many M & P guys and gals who ported to EB2. The spillover from EB2 ROW to EB2 India & China would be less compared to last year

If there is lot of porting definitely there is some advantage to applicants in EB3 who are not qualified to port. But it all depends upon what is your PD. For example : If you are EB3-I and your PD is August 2002, you would not see much benefit of porting as number of porting applications in front of you would be marginal and you will become current more or less in same time frame if there had been no porting. But imagine if you are EB3-I with PD May 2006, yearly porting of 6000 applications means demand has reduced by 6000 in front of you or you have received indirect spillover of 6000 visas. So in all it depends on where does your PD lie in the entire queue.

Anonymous said...

Hi CM,

Is there a significance of the porting from eb3 to eb2 to those left at eb3? I mean, is there an advantage or disadvantage to those who are sticking on eb3 if there is a lot of porting?

How about EB3phil. PD July 2008, is there any effect on a lot of porting? Before I discovered your website, i thought unused visa for eb1phil and eb2phil, knowing both are current can be used on spillover numbers for eb3phil but instead it will go to the retrogressed eb2IC, am i right? I hope your reply can give me an ease on my burden of waiting, thank you so much.

Well EB3 to EB2 porting is only beneficial for EB2 retrogressed countries. Spillover rule was not interpreted correctly until 2009 by DOS/USCIS . Starting 2009, USCIS/DOS corrected it's interpretation. That said, most of the spillover will be consumed by EB2 retrogressed countries. Any visas left will be consumed by EB3-ROW. Unless these categories would become current, expect no spillover visas available for EB3 - retrogressed countries.

How about EB3phil. PD July 2008, is there any effect on a lot of porting? Before I discovered your website, i thought unused visa for eb1phil and eb2phil, knowing both are current can be used on spillover numbers for eb3phil but instead it will go to the retrogressed eb2IC, am i right? I hope your reply can give me an ease on my burden of waiting, thank you so much.

Why do you think 08-09 don't have many GC filing. Economy started falling in later half of 2008, which triggered panic and many filed GC in late 2008 and early 2009. I will assume only 2010 and 2011 have less GC.

I do not think that 2008-2009 have less cases. I think they have enough number of cases. Most of these PERMs had to undergo audit and they are getting out of this endless wait starting this CY.

Anonymous said...

Why do you think 08-09 don't have many GC filing. Economy started falling in later half of 2008, which triggered panic and many filed GC in late 2008 and early 2009. I will assume only 2010 and 2011 have less GC.

Well EB3 to EB2 porting is only beneficial for EB2 retrogressed countries. Spillover rule was not interpreted correctly until 2009 by DOS/USCIS . Starting 2009, USCIS/DOS corrected it's interpretation. That said, most of the spillover will be consumed by EB2 retrogressed countries. Any visas left will be consumed by EB3-ROW. Unless these categories would become current, expect no spillover visas available for EB3 - retrogressed countries.

How about EB3phil. PD July 2008, is there any effect on a lot of porting? Before I discovered your website, i thought unused visa for eb1phil and eb2phil, knowing both are current can be used on spillover numbers for eb3phil but instead it will go to the retrogressed eb2IC, am i right? I hope your reply can give me an ease on my burden of waiting, thank you so much.

I do not think that 2008-2009 have less cases. I think they have enough number of cases. Most of these PERMs had to undergo audit and they are getting out of this endless wait starting this CY.

Anonymous said...

Why do you think 08-09 don't have many GC filing. Economy started falling in later half of 2008, which triggered panic and many filed GC in late 2008 and early 2009. I will assume only 2010 and 2011 have less GC.

@KK That is still a worry. We have enough pre-adjudicated cases to use entire spillover but if DOS will assume demand greater due to some porting aaumptions in month of September than actually is, we may end up wasting some visas.

How come spill over numbers are being used by India while other oversubscribed countries such as China or others are still using their own annual limits?

The law doesn't clearly specify the SPILLOVER numbers should be allocated by prority date. Spillover numbers allocated by priority date would violate the diversity principle to allow large proportions under EB2 of one country such as India to immigrate while at the same time discriminating other oversubscribed countries such as China.

The SPILLOVER numbers should be shared equally under EB2 category by oversubscribed countries, say 50-50 split between China and India at this point, then within each country,visa number is allocated based on priority date. This would be the most fair and reasonable allocation method to all oversubscribed countries and it is consistent with the diversity principle to avoid large proportion immigrants from one country.